If the prosecutor and defense attorney are truly in agreement as to the proper punishment in a case, trust each other, and know in advance that the judge won't approve their bargain, wouldn't it force the judge's hand a bit to just pick a punishment jury, put on evidence that supports the agreed punishment, and both sides request the same punishment? Granted, there's risk there, but if a judge has already demonstrated unwillingness to cooperate, maybe worth a try?

Well, I certainly don't have any problem putting that agreement before the jury, but I would think the defendant would want the important protection that he receives from a negotiated plea: the right to withdraw the plea if the sentencing authority disagrees.

There is no right to withdraw a plea before a jury. And I sure wouldn't want to find out if the judge is going to grant a motion for new trial. That would put us right back to the current situation, except that the defendant's statements during trial would almost certainly be admissible at the subsequent trial.

These circular arguments make it all the more clear that Judge Cochran's dissent in Bowie got it dead right: judges have no business in plea bargaining, regardless of the cute system they use to get it done.

In the vague recesses of my mind I seem to recall something about judges not being in the business of issuing "advisory opinions." Is this just something applicable to appellate courts? Or does it apply to all judges? I've looked at the the Code of Judicial Conduct and it doesn't really say anything there other than the stuff about the judge maintaining his/her impartiality, etc., etc.. Isn't that in effect what is going on here? Almost like a non-binding arbitration or mediation, the judge here is giving an opinion that this is what the defendant's punishment should be and if the defendant doesn't like it then he/she's not bound by it. But, of course, if the defendant does like the judge's sentence and the State doesn't, the State is bound by it.

If the procedure being used in the 114th is analogous to mediation or arbitration, then (if it is without the State's consent) it is expressly improper. art. 26.13(i).

Because of the warped construction given to 26.13 in various trial courts, my vote for where to address this issue is in that statute. That is essentially the place where the feds deal with the issue. (Rule 11 (e)(1)). Exactly when in the process the contract becomes binding and what constitutes acceptance of the bargain by the judge has, I think, become muddled. What we do know is that if the court accepts the plea agreement and enters a finding of guilt, the court is bound to carry out the terms of the agreement. Allen, 827 S.W.2d at 70. We also know that "accepting the plea" really means approving of the State's recommendation and entering a finding of guilt (or a finding that the evidence substantiates guilt), something which can be postponed while the judge gets the necessary information to make sure the recommendation is not oppressive or unfair and is in the public interest. Ortiz, 933 S.W.2d at 104. We know that this is usually accomplished by the court's "announcement" that it will follow or be bound by the recommendation. Williams, 637 S.W.2d at 947. These concepts of "acceptance" are even less clear where there is no bargain. Furthermore, it needs to be made clear whether the court can even reach the issue of punishment without first accepting the plea or making a finding of guilt. While we know it is a "unitary" proceeding (which in many courts is nevertheless split into at least two separate parts), if it were spelled out that a court cannot consider or reach even a tentative decision as to punishment until after finding a reason to do so (i.e. that the defendant is guilty or subject to punishment), then the State would be protected against the tentative plea procedure being discussed. Alternatively, a statute should be adopted to make clear that the court should not permit a plea to be withdrawn except upon a finding that it was made involuntarily or for other "valid" reason. Any law which gives the trial court complete discretion to grant a new trial or set aside solemn proceedings which have already taken place for effectively no reason merely raises the spectre and appearance of judicial impropriety. That power should be tied to a systemic or societal value. Not only are we talking about judicial overreaching, but a wasting of resources. Why that appeals to an electorate (aside from my recognition of the public's misconceptions that anything but a full-blown trial is unjust and that prosecutors are shirking their responsibility if they don't feel the same way) puzzles me.

[This message was edited by Martin Peterson on 05-20-04 at .]

Maybe I have picked up late here, but the way I see it Judge Kent doesn't "hand down" tough sentences at all in these situations....she is making an offer to a defendant, and some may be tough offers, but ask long as the defendant is free to reject the judge's offer, it is just posturing. Heck, she doesn't have to back up her offer with evidence, like prosecutors must. I can sure see why that would make a judge appear tough, with no down side that she would actually have to put her evidence where her offer is...

An example of limitations on a judge's authority to allow withdrawal of a guilty plea is found in Minn.R.Crim.P. 15.04 which provides that before permitting this to occur the court must give "due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea". The rule also says withdrawal "after sentence" must be shown necessary "to correct a manifest injustice". Seems to me our code could address the procedure for withdrawal of guilty pleas too.

For a recent federal case illustrating how much judicial participation is frowned upon see Pagan-Ortega where the Defendant thought he was unduly influenced by stuff that likely takes place frequently enough in our courts.

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He asserts the classic argument against judicial intervention in plea negotiations, which is explicitly proscribed by Fed. R. Crim. P. 11(c)(1)- that words of wisdom from a judge are all too likely to be coercive; that the judge's impartiality may be diminished; and that his role may appear to be that of an advocate rather than that of a neutral. See United States v. Bierd, 217 F.3d 15, 19 (1st Cir. 2000); United States v. Daigle, 63 F.3d 346, 348 (5th Cir. 1995).

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